Gabe Kaimowitz v. The Florida Bar, Its Agents, Employees and Assignees, 996 F.2d 1151, 11th Cir. (1993)

996 F.
2d 1151
Gabe KAIMOWITZ, Plaintiff-Appellant,

v.
THE FLORIDA BAR, its agents, employees and assignees,
Defendant-Appellee.
No. 92-2897
Non-Argument Calendar.
United States Court of Appeals,
Eleventh Circuit.
Aug. 4, 1993.
George L. Waas, Asst. Atty. Gen., Tallahassee, FL, Joanne Reed Day,
Jacksonville, FL, for defendant-appellee.
Appeal from the United States District Court for the Middle District of
Florida.
Before KRAVITCH and BIRCH, Circuit Judges, and TUTTLE, Senior
Circuit Judge.
PER CURIAM:
This is an appeal from the district court's order granting summary judgment to
the Florida Bar and the Supreme Court of Florida in Attorney Gabe
Kaimowitz's Civil Rights action. Kaimowitz pled that the racial disparity within
the governing board of the Florida Bar and the Florida Supreme Court has
"worked to the disadvantage" of Kaimowitz and others who provide legal
services to "oppressed minorities" in Florida and in that mandatory membership
in that association violates his right to free association protected by the First
Amendment, citing numerous examples of Florida Bar officials who have
worked actively against him, particularly during his tenure as Director of the
Greater Orlando Legal Services. Kaimowitz seeks declaratory and injunctive
relief to allow him to withdraw from the Florida Bar while retaining the right,
based on his New York Bar membership, to practice law in the Federal Courts
of Florida and to practice in the Florida State Courts on a pro hac vice basis.
The district court found that conditioning an attorney's license to practice law
upon state bar membership and payment of dues does not violate the
Constitution and that the Eleventh Amendment bars Kaimowitz's suit for
damages against the Florida Bar and the Florida Supreme Court.
Kaimowitz filed a motion for reconsideration in which he urged the district

court to amend its order by adding a ruling against any action by the Florida
Bar or the Florida Supreme Court to interfere with his right to practice in the
Federal Courts of Florida should he discontinue payment of bar dues and,
presumably thereby lose his license to practice law in Florida. In response, the
Florida Bar and the Florida Supreme Court pointed out that this issue is not ripe
for adjudication and the district court denied the motion for reconsideration.
The court's order granting summary judgment contains a detailed analysis of

the facts and applicable law surrounding the issues raised:
5
Whether
he may disassociate from the Florida Bar without loss of his license to
practice law and whether the Eleventh Amendment protects the Florida Bar from
suit for damages.
6
The record fully supports the facts as found by the district court and the cases
cited support the court's legal analysis. We, therefore, adopt the court's
memorandum opinion as the judgment of this Court. It is attached as an
appendix hereto.
On appeal, Kaimowitz also argues that the district court erred by denying his
request to amend its order and enjoin the Florida Bar from imposing sanctions
which would interfere with his practice of law in Florida's Federal Courts if he
ceases to be a member in good standing of the Florida Bar.
The Florida Bar and Supreme Court maintain that requiring membership in
good standing of the state bar in order to practice in Federal District Court is
constitutional.
In an action tried without a jury, the court may, on motion, open the judgment
if one has been entered, take additional testimony, amend findings of fact and
conclusions of law, or make new findings and conclusions, and direct the entry
of a new judgment. Fed.R.Civ.P. 59(a)(2). The Florida Bar has taken no action
to enjoin Kaimowitz's practicing law in the federal sector. Because the issue
raised by Kaimowitz in his motion for reconsideration is not ripe, the district
court acted within its discretion by denying the motion. See International Tape
Mfrs. Ass'n v. Gerstein, 494 F.2d 25, 28 (5th Cir.1974) (one challenging a
statute must demonstrate that he is immediately injured or jeopardized by its
operation). Kaimowitz has not shown, in his original complaint or in his motion
for reconsideration, that he is not a member in good standing of the Florida Bar,
or that the Federal Court has threatened to remove him from its membership.
Accordingly, adjudication of this issue would constitute an advisory opinion
treating a hypothetical case rather than an actual controversy. Therefore, the
district court's denial of Kaimowitz's motion to amend the judgment is
10
AFFIRMED.
APPENDIX
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
GABE KAIMOWITZ, Plaintiff,
11
-vs12
THE FLORIDA BAR, etc., et al., Defendants.
13
CASE NO. 88-835 CIV-ORL-18(D)
ORDER
14
HODGES, District Judge.
15
This is an action, pursuant to 42 U.S.C. 1981 and 1983, by a member of the

Florida Bar who alleges that his compulsory membership in that organization
violates his rights to freedom of speech and association under the First and
Fourteenth Amendments. Plaintiff seeks to disassociate himself from the
Florida Bar yet retain his license to practice law in Florida. (R1-1) He also
objects to the requirement that he pay annual dues to the Florida Bar, some of
which are allegedly used to finance political lobbying by the Bar. (Id.)
16
This action was brought in the Orlando Division in September, 1988. Upon
motion of the Plaintiff, however, both resident District Judges in that Division
recused themselves. (Docs. # 2 & 5). The case was then transferred to the
undersigned, as Chief Judge at that time. Plaintiff's subsequent motion to recuse
all Judges who are members of the Florida Bar was denied. (Doc. # 8). By
Order entered March 20, 1989, Plaintiff's motion for a preliminary injunction
was denied. (Doc. # 25). Plaintiff appealed that interlocutory order, and the
order was affirmed by the Court of Appeals by mandate issued February 21,
1990. (Doc. # 34). The Defendants have moved for summary judgment (R1-27,
28) while the Plaintiff has moved for partial summary judgment, (R1-37) for
the setting of a scheduling conference, and to stay his annual bar dues
payment.1 Those motions are now before the Court and are ripe for decision.
17
Since the filing of Defendants' motion, two decisions have been handed down
by the United States Supreme Court and the Eleventh Circuit Court of Appeals
which squarely address most of Plaintiff's claims. In Keller v. State Bar of
California, the Supreme Court examined the constitutionality of the California
bar's practice of using bar member's dues to finance political activities. 496 U.S.
1, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). The Court held that to the extent that
an integrated bar2 and its members and officers operate "essentially as
professional advisors to those ultimately charged with regulating the legal
profession" (in this case, the Supreme Court of Florida), compelled association
and payment of dues is permissible. Id., 496 U.S. at 13, 110 S.Ct. at 2237.
However, "compulsory dues may not be expended to endorse or advance" a
political objective. Id. In order to comply with this decision, the Court extended
to state bars the procedures it had previously required of labor unions in the
collection of dues:
18
"[A]ccording
to Teachers v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232
(1986), the constitutional requirements for the association's ... collection of fees
include an adequate explanation of the basis for the fee, a reasonably prompt
opportunity to challenge the amount of the fee before an impartial decisionmaker,
and an escrow for the amounts reasonably in dispute while such challenges are
pending."
19
Id., 496 U.S. at 16, 110 S.Ct. at 2237. The California bar had no such system in
place at the time the case was decided.
20
In Gibson v. The Florida Bar, the Eleventh Circuit applied Keller to the
procedures adopted by the Florida Bar for resolving challenges to the payment
of dues by its members. 906 F.2d 624 (11th Cir.1990), cert. denied, --- U.S. ----,
112 S.Ct. 633, 116 L.Ed.2d 432 (1991). Chief Judge Tjoflat, writing for the
majority of the panel, carefully examined the Florida Bar's procedures and
found that they satisfy the requirements of the Constitution and applicable case
law.3
21
Gibson therefore controls Plaintiff's claim regarding payment of bar dues, and
Defendants' motions for summary judgment are due to be granted on that
claim.
22
Plaintiff also asserts in the complaint that his compelled association with the
Florida Bar violates his First Amendment right to freedom of association. Both
Keller and Gibson dealt only with compulsory payment of bar dues, not with
the constitutionality of compulsory membership in and of itself. That issue was
decided by the Supreme Court in 1961, in a decision on which the Keller Court
relied heavily. Lathrop v. Donohue, 367 U.S. 820, 81 S.Ct. 1826, 6 L.Ed.2d
1191 (1961). Justice Harlan, concurring in the judgment, stated:
23 [Railway Emp. Dept. v.] Hanson case, 351 U.S. 225, 76 S.Ct. 714, 100 L.Ed.
The
1112, decided by a unanimous Court, surely lays at rest all doubt that a State may
Constitutionally condition the right to practice law upon membership in an
integrated bar association, a condition fully as justified by state needs as the union
shop is by federal needs.
24
Lathrop, 367 U.S. at 849, 81 S.Ct. at 1841. The Lathrop decision controls
Plaintiff's claim regarding compulsory bar membership, and the Defendants'
motion is due to be granted on that claim as well.
25
Plaintiff's only remaining claim seeks damages from the Defendant Florida Bar,
pursuant to 42 U.S.C. 1981, for actions allegedly taken by the Bar to support
"the exploitation and resegregation of blacks" and its alleged interference with
Plaintiff's "opportunity to seek employment with or for agencies and individuals
normally serving blacks." Defendants' motion asserts that the Eleventh
Amendment bars the Plaintiff from recovering damages against the Florida Bar.
(R1-27, 28) Plaintiff's response addresses this claim with a single paragraph of
conclusory statements, without any citation to legal authority. (R1-35).
26
"The Eleventh Amendment prohibits federal courts from exercising subject

matter jurisdiction in suits brought against a state by a citizen of that state. The
amendment applies even when a state is not named as a party of record, if for
all practical purposes the action is against the state. Thus, the Eleventh
Amendment extends to state agencies and other arms of the state." Schopler v.
Bliss, 903 F.2d 1373, 1378 (11th Cir.1990) (citations omitted). The Eleventh
Amendment prohibits actions against state courts and state bars. See, Ginter v.
State Bar of Nevada, 625 F.2d 829 (9th Cir.1980); Browne v. N.Y.S. Court
System, 599 F.Supp. 36 (E.D.N.Y.1984); Mattas v. Supreme Court of
Pennsylvania, 576 F.Supp. 1178 (W.D.Pa.1983). Plaintiff's only response to the
Defendants' argument is his unsupported assertion that the Florida Bar is not a
state agency for Eleventh Amendment purposes. Plaintiff's assertion is
contradicted by the preamble of the Rules Regulating the Florida Bar, whereby
the Supreme Court of Florida established the bar as "an official arm of the
Court." Rules Regulating the Florida Bar, 494 So.2d 977, 979 (Fla.1986). This
Court therefore lacks subject matter jurisdiction to adjudicate Plaintiff's claim
for damages.
27
Accordingly, upon due consideration, it is ORDERED that:
28
(1) Defendants' motions for summary judgment (Docs. # 27 & 28) are
GRANTED, and the Clerk is directed to enter judgment against the Plaintiff
and in favor of the Defendants on all claims.
29
(2) Plaintiff's motion for reconsideration (Doc. # 31) is DENIED.
30
(3) Plaintiff's motion for scheduling conference (Doc. # 36) is DENIED as

MOOT.
31
(4) Plaintiff's motion for partial summary judgment (Doc. # 37) is DENIED.
32
(5) Plaintiff's emergency motion for stay of bar dues payment (Doc. # 44) is
DENIED.
33
IT IS SO ORDERED.
34
DONE and ORDERED at Tampa, Florida, this 13th day of January, 1992.
Plaintiff has also moved for reconsideration of an order entered by Judge Sharp
after he had recused himself from the case. That order stated that the Court
would take the motion for summary judgment under advisement on February
27, 1990 and that the parties may file supporting affidavits or other evidence
until that date. Plaintiff's motion simply objects to the entry of the order by
Judge Sharp after he had recused himself. The motion does not assert that
Plaintiff has been prejudiced in any way by the content of the order. Plaintiff's
motion is due to be denied
An "integrated bar" refers to "an association of attorneys in which membership

and dues are required as a condition of practicing law in the State." Keller, 496
U.S. at 5, 110 S.Ct. at 2231. The Florida Bar is an integrated bar. Rules
Regulating the Florida Bar, 1-3.1, 1-3.2
3
The only exception was the bar's formula for the calculation of interest on
refund payments, which the Court found unacceptable. Because Plaintiff does
not challenge the bar's calculation of interest, that portion of the decision is
irrelevant to this case

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996 F.

Gabe KAIMOWITZ, Plaintiff-Appellant,

Kaimowitz filed a motion for reconsideration in which he urged the district

The court's order granting summary judgment contains a detailed analysis of

HODGES, District Judge.

This is an action, pursuant to 42 U.S.C. 1981 and 1983, by a member of the

"The Eleventh Amendment prohibits federal courts from exercising subject

Accordingly, upon due consideration, it is ORDERED that:

(2) Plaintiff's motion for reconsideration (Doc. # 31) is DENIED.

(3) Plaintiff's motion for scheduling conference (Doc. # 36) is DENIED as

An "integrated bar" refers to "an association of attorneys in which membership

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